Defense begins for James 'Whitey' Bulger

Looking back on the last 36 days, the government surely must feel pretty good about the case it put before a jury of James "Whitey" Bulger's peers.

After resting its case Friday, prosecutors can argue confidently and forcefully to the jury that Bulger played an active and direct role in years of unprecedented and deeply disturbing criminal activity.

While many of the government's witnesses have skeletons in their closets (to say the least), AUSA Fred Wyshak will be able to stand up during his closing argument and remind jurors that the man at the center of a shockingly crooked relationship between organized crime and law enforcement was Bulger.

At the same time, defense attorney J.W. Carney Jr. promised jurors in his opening statement that he and his co-counsel, Hank Brennan, would establish that the government's three key witnesses (John Martorano, Kevin Weeks and Stephen Flemmi) were all liars whose testimony could not form the basis of a verdict of guilt beyond a reasonable doubt.

Anyone who watched the defense pick apart those three witnesses knows the defense kept that promise to the jury. Whether that carries the day during deliberations is a completely different story.

As for closing arguments (which will take place sometime this week), the prosecution revealed that Wyshak would deliver the argument for the government.

Wyshak has lived and breathed this case for a long time, and there's no question that his summation will be a profoundly important moment in his career. He told Judge Denise Casper Friday that he would like three hours to make his pitch to the jury.

Carney responded that whatever time the judge gives to the prosecution, the defense would like the same consideration. He also told the judge that he and Brennan plan to split up their side's closing.

Before they get to that point, Monday begins what will be a short case for the defense.Here are the three things I'll be looking for:

1. How many witnesses does the judge actually let Carney and Brennan call?

Remarkably, Casper continued to hear arguments Friday on what to do with Bulger's witness list. She struck nearly two-thirds of the names on the defense's original witness list after concluding that the proposed testimony was not relevant to the case before the jury. I've never seen a judge take so long to answer what seems to be a pretty straightforward question about who can and cannot testify. She continued to hear arguments Friday.

2. What happens when Martorano returns to the courthouse – this time as a defense witness?

Casper told Team Bulger that one of the few witnesses it will be permitted to call is Martorano. The defense plans to put him back in front of the jury in order to impeach a statement Flemmi made last week about the murder of Deborah Davis. Flemmi testified that Bulger committed the crime. Martorano will say that that's not the case. Carney told Casper he only expects to keep Martorano on the stand for five minutes. We'll see about that.

3. Will the man at the center of this entire saga take the stand?

I've been saying for a while now that Bulger will not testify, but any lawyer worth his salt knows the final decision on that question isn't made until the very last minute. The judge pressed Carney Friday to tell her whether Bulger would testify. Carney refused to answer. It was totally out of line for the judge to expect a defense lawyer to comment on such a question. Carney was right to say "Thanks, but no thanks" when asked to answer.

Follow David Frank on Twitter @davidfrankmlw

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